Canadian Court Issues Triple-Whammy Ruling In Favor Of Free Speech And Commentary Online

from the fair-dealing dept

Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:

While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.

Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.

On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.

All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website.

This is a perfect example. Artist puts links up on website. If he doesn't wany anyone linking to his stuff, he should post with watermarks, or he could *GASP* remove the picture from his site, effectively breaking all the links. There's no need to go crying to the nearest court.

Re: *Claps*

People here don't have to worry about how they are going to pay for getting sick, how they are going to ensure their kids get a decent education, or if someone in a country half way around the world is going to blow up my family because my government blew up his.

When you don't have these ever-present fears, its a lot easier to watch your government to ensure they don't strip you of all your freedoms.

...Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

Did I understand what I just read and C&Ped here? Am I to understand that Canada's position is that hyperlinks are not infringement? Oh, isn't the CRIA gonna have a ball with that. It puts a huge hole in the idea that infringement consists of hyperlinks.

precedent-setting court ruling

I actually sat in the courtroom as a spectator for both parts of this, first a hearing about what evidence can be presented and then the case hearing itself.

The Fourniers - the defendants in this - have been the subjects of many lawsuits by people trying to curb freedom of speech on the internet. They have already set a previous legal precedent in Canada to protect the identity of the users of their forum from cyber-bullies: now, they have to prove that there is a prima facie case for defamation before a user's id is handed over to a person who wants to sue them.

It is important to note that by now, the Fourniers (who run Free Dominion) are low on funds and had to represent themselves in court. So, Connie Fournier, a computer scientist, went up against some very high priced IP lawyers - and won a bit more freedom for us all!

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks.

Re: Re:

Well in Commonwealth law countries anyway (not UK) though I still suspect the USofA will try to extradite anyone from those countries who dares to link to world viewable information. Soft terrorism of thee linkages must be stopped *eyeroll*

Re:

Strangely it's getting to the point that the rest of the worlds (and it's courts) is starting not to give a flying fuck (or anything else) to the 5% of the world that is acting like a petulant child. [for those not paying attention that child is the USofA and it's corporate cronies]

Major precedents in Canadian courts can and do affect legal proceedings in a lot of countries that have populations totalling lots more than the USA and vice versa (ie: iiNet in Australia, Patent law on generic medicines in India, etc etc).

makes a change for a court to make sensible decisions over copyright and what is or isn't potential infringement instead of bending over and taking it up the rear from the entertainment and related industries. now, if only that sense could be copied (pun intended) to other countries!

I've followed Canada copyright situation for a while (and read a lot of Michael Geist excellent articles on the issue) and there have been quite bumpy rides over the last few years. Still, this is one major win that could help setting precedents elsewhere in the world.

This year has been quite special. While it is a stormy year as The Pirate Bay fellas said (and predicted) it would be in the beginning of the year, the people also scored some significant victories. While we are living convoluted 'copyright' times I see the end of the storm ahead in a few years.

Re: Re: *Claps*

Re:

That's like saying no-one gives a flying fuck about Mexico - try saying that down in Arizona! Oh wait, maybe that's where you are. In which case, go back home!

This blog covers global tech & IP issues, since these things spread further than just the quaint backyard of 'Murrica. Like for instance, the discussion of imported goods maybe not having first sale right. Or large chunks of the rest of the world rejecting your domineering 'treaties' like ACTA and TPP.

Please feel free to crawl back into your trailer and ignore your dependency on the rest of the world. Much good it's done you before.

Re:

Except, you know, anyone with half a brain. And every American diplomat. And every American president. Basically anyone smart/mature enough to get past the "hurr hurr, Canada's dumb, duhrrr, I'm an awesome American!" jokes and realize that we are one of your closest, most important allies and trade partners, and longest, most dedicated friends.

Re:

Considering our frozen neighbors to the north are only a stone's throw away for me, and if I can ever find a loophole that would allow me emigration I'd be there in a heartbeat.... yeah, I do care. But thanks for trying to speak for me and everyone else.

Re: Re: Re: *Claps*

@Jesse

Your statement is simply untrue.

Part of the Fournier's counterclaim against Warman was that he is using the 'maximum disruption' technique (which he has promoted) against them.

Warman's defense to this was that he does not believe the Fourniers themselves are neo-nazis or nazis of any kind and that he is convinced that their site does not contain any neo-nazi or holocaust-denying material. Warman himself insisted that this be made part of the court record.

His defense was that since he only uses 'maximum disruption' against people he believes are neo-nazis, and he does not believe that either the Fourniers or their forum is neo-nazi, he could not possibly be using the 'maximum disruption' thingy on them.

Ms. Fournier pointed out that this line of defense by Mr. Warman is a no-starter: it would be like punching a brunette in the head, then offering the defense that he could not have punched the brunette because he has a strict policy of punching only blondes in the head...

It got a chuckle in the courtroom - including from Warman's own lawyer.

Re: Re: Re: *Claps*

As much as I like this ruling, my reaction is bittersweet.

Free Dominion is a racist forum dedicated to holocaust deniers and neo-nazis.

There's a reason I didn't even name or mention the defendants in the post :) It's the ruling that matters. I certainly wouldn't want these important free speech concepts being thrown out just because of the views of the first people who happened to test them

Re: Re: Re: Re: *Claps*

Yea I agree. I guess the thing that frustrates me is these individuals always present themselves as defenders of free speech, when really they are trying to do really horrible things. A lot of these neo-nazi people will literally track you down and hurt you if you actively oppose them in any meaningful sort of way.

I am happy for this particular ruling. I also support, to an extent, Canada's approach to limiting hate speech.